Silva v. Ada Tp.

Decision Date23 December 1982
Docket NumberDocket Nos. 65815,Nos. 6,66201,J,7,s. 6
Citation416 Mich. 153,330 N.W.2d 663
PartiesA. Clare SILVA and Karen J. Silva, Plaintiffs-Appellants, v. TOWNSHIP OF ADA, Defendant-Appellee, and Carl Huisman and Cornelia Huisman, Husband and Wife; Albert John Dykstra; Timothy Holt and Karen Holt, Husband and Wife; Larry Osterink and Debbie Osterink, Husband and Wife; and James Vogt and Beverly Vogt, Husband and Wife, Intervening Defendants-Appellees. OTTAWA SILICA COMPANY, Michigan Division, a foreign corporation, Plaintiff- Appellant, v. The TOWNSHIP OF BROWNSTOWN, an unincorporated municipality, and Township Board of the Township of Brownstown, Defendants-Appellees. an. Term 1982. Calendar
CourtMichigan Supreme Court

Dilley & Dilley by Robert W. Dilley, Grand Rapids, for plaintiffs-appellants.

D'Avanzo & Danko, by Stephen G. Danko, Southgate, for plaintiff-appellant Ottawa Silica Co.

William J. DeBiasi, Taylor, for defendant-appellee Brownstown Township.

Varnum, Riddering, Wierengo & Christenson by Thomas J. Heiden and Bruce G. Hudson, Grand Rapids, for defendant-appellee Tp. of Ada.

Freihofer, Oosterhouse, DeBoer & Barnhart by Walter B. Freihofer, Grand Rapids, for intervening defendants-appellees.

Leonard K. Kitchen, Kitchen, Schmerberg & Ward, Dexter, for amicus curiae Whittaker & Gooding Co.; Clan Crawford, Jr., Ann Arbor, of counsel.

Dykema, Gossett, Spencer, Goodnow & Trigg by James W. Collier, Daniel G. Wyllie, Michael G. O'Neill, Detroit, for amicus curiae Lyon Development Co.

Bauckham, Reed, Lang, Schaefer & Travis, P.C., Kalamazoo, for amicus curiae Michigan Townships Ass'n.

LEVIN, Justice.

These cases, consolidated on appeal, concern the standard for determining the validity of zoning which prevents the extraction of natural resources. In both cases, the Court of Appeals upheld zoning regulations which would prevent the extraction of natural resources without considering whether "very serious consequences" would result from the extraction. We reaffirm the rule of Certain-teed Products Corp. v. Paris Twp., 351 Mich. 434, 88 N.W.2d 705 (1958), that zoning regulations which prevent the extraction of natural resources are invalid unless "very serious consequences" will result from the proposed extraction.

I

A. Clare Silva and Karen J. Silva purchased an 80-acre parcel in an area zoned for specialized farming and single-family residences. The Silvas intended to use this property to strip mine for gravel. The Silvas' property is surrounded by agricultural, residential, and undeveloped property.

The Silvas filed two applications for rezoning with the township zoning authorities, but their applications were denied. In their second application, the Silvas proposed several ways in which they would attempt to minimize any adverse effects of their operations, including limiting mining to ten years, regrading and recontouring the property at the conclusion of the mining operations to make it suitable for farming or home development, fencing, using stockpiles as visual and sound buffers, and restricting the extraction to a 46-acre area.

After their unsuccessful efforts to obtain rezoning, the Silvas filed an action in the Kent Circuit Court. Judgment was entered in favor of the township, and the Court of Appeals affirmed. 1

The Ottawa Silica Company, intending to mine silica sand, purchased 31 acres in an area zoned for residential use, adjacent to land which it already mines. The south end of Brownstown Township, where this property is located, remains basically rural and undeveloped except for one large subdivision. Two or three homes are directly across from the property.

The township denied a request for reclassification. Ottawa Silica then commenced this action in the circuit court. The court found that:

"The resource to be mined is a unique type of silica sand, which, because of its qualities of being both round and white, is particularly valuable for foundry use and the manufacturing of fine crystal. There is no other deposit of such sand in this country at this relatively shallow level underground, which means that it can be mined more economically than if it were deeper under the ground, and hence can be sold at a most competitive price."

Approximately 49% of the parcel is within a flood plain and cannot legally be built upon. The court ruled the zoning unconstitutional insofar as it applied to the portion of the land west of a stream bisecting it. The Court of Appeals reversed.

II

This Court has recently reaffirmed that a zoning ordinance must be reasonable to comport with the requirements of substantive due process. 2 Zoning ordinances are presumed to be reasonable, and a person challenging the ordinance has the burden of proving otherwise. 3 These appeals concern the standard to be employed in determining reasonableness where the zoning would prevent the extraction of natural resources.

A

Zoning regulations seek to achieve a land use which serves the interests of the community as a whole. 4 Because of the important public interest in extracting and using natural resources, 5 this Court has applied a more rigorous standard of reasonableness when the zoning would prevent the extraction of natural resources.

This Court first noted that zoning which prevents the extraction of natural resources involves different considerations than zoning regulations generally in North Muskegon v. Miller, 249 Mich. 52, 57, 227 N.W. 743 (1929), which concerned a zoning ordinance preventing the drilling of oil wells:

"The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one's property, through zoning ordinances, unless some very serious consequences will follow therefrom." 6 (Emphasis supplied.)

In Certain-teed Products, supra, 351 Mich. at p. 467, 88 N.W.2d 705, this Court reaffirmed that zoning would not be sustained unless very serious consequences would result from the mining operations:

"To sustain the ordinance in such case there must be some dire need which, if denied the ordained protection, will result in 'very serious consequences.' "

We again reaffirm the "very serious consequences" rule of Miller and Certain-teed.

Natural resources can only be extracted from the place where they are located and found. Preventing the mining of natural resources located at a particular site prevents all use of those natural resources. As the United States Court of Appeals for the Sixth Circuit said in Village of Terrace Park v. Errett, 12 F.2d 240, 243 (CA 6, 1926):

"There is * * * a substantial difference between an ordinance prohibiting manufacturing or commercial business in a residential district that may be conducted in another locality with equal profit and advantage, and an ordinance that wholly deprives the owner of land of its valuable mineral content."

Preventing the extraction of natural resources harms the interests of the public as well as those of the property owner by making natural resources more expensive. Because the cost of transporting some natural resources (e.g., gravel) may be a significant factor, locally obtained resources may be less expensive than those which must be transported long distances. It appears that the silica sand involved in one of the cases here on appeal is unique in quality and location.

In most cases, where natural resources are found the land will be suited for some other use and can reasonably be devoted to that use. Unless a higher standard is required, natural resources could be extracted only with the consent of local authorities or in the rare case where the land cannot be reasonably used in some other manner. The public interest of the citizens of this state who do not reside in the community where natural resources are located in the development and use of natural resources requires closer scrutiny of local zoning regulations which prevent development. In this connection, we note that extraction of natural resources is frequently a temporary use of the land and that the land can often be restored for other uses and appropriate assurances with adequate security can properly be demanded as a precondition to the commencement of extraction operations.

B

In both Ottawa Silica and Silva, the Court of Appeals held that Kropf v. Sterling Heights, 391 Mich. 139, 215 N.W.2d 179 (1974); Kirk v. Tyrone Twp., 398 Mich. 429, 247 N.W.2d 848 (1976); Ed Zaagman, Inc. v. City of Kentwood, 406 Mich. 137, 277 N.W.2d 475 (1979), and Turkish v. City of Warren, 406 Mich. 137, 277 N.W.2d 475 (1979), were controlling. Those cases were concerned with the validity of zoning ordinances in general. There was no consideration of and, hence, they could not have overruled, the "very serious consequences" rule of Miller and Certain-teed. 7 Kropf supra, 391 Mich. at 161-163, 215 N.W.2d 179, reaffirmed prior case law, and Kirk, supra, 398 Mich. at 434, 439, 441, 247 N.W.2d 848, and Zaagman-Turkish, supra, 406 Mich. at 153, 277 N.W.2d 475, reaffirmed Kropf. In reaffirming prior case law, the Kropf-Kirk-Zaagman-Turkish decisions did not disaffirm this aspect of prior case law. The Court of Appeals erred in disregarding the rule of Miller and Certain-teed and in concluding that it had been overruled sub silentio. 8

C

Our reaffirmance of the "very serious consequences" rule does not imply that zoning which prevents the extraction of natural resources is unreasonable. Zoning regulations are presumed to be reasonable and a person challenging zoning has the burden of proving otherwise. The party challenging the zoning has the burden of showing that there are valuable natural resources and that no "very serious consequences" would result from the extraction of those resources.

The Court of Appeals failed to apply the "very serious consequences" standard in determining the validity of the zoning in the instant cases. We reverse and remand both cases to the Court...

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